Sunday, March 6, 2016

The Gold Standard For Gridlock: "Senatorial Holds"

I have this
vision of a cartoon with a giant Rube Goldberg-like machine with lots of valves
and spinning wheels, etc. labeled "Government." Standing next to this
giant machine is a tiny little figure with a devils cap and the back of his
shirt is marked Senator. He has a long pitchfork in his hand and is about to
stick it into one of the spinning wheels. The caption reads "Senator
working."

Seriously,
if one wanted to design a mechanism to stop the wheels of government, there
could be no better tool than the infamous "Senatorial Hold." And, it
gets better (or worse, depending on your perspective) -- there are
"regular holds"; "secret holds"; "tag-team
holds"; "multiple holds"; and more I'm sure.

The concept
is really simple -- any one of the 100 Senators in the U.S. Senate can place a
"hold" on a piece of legislation moving through the body -- the
effect is that the legislation is stopped dead in its tracks. The Washington
Post in a 2010 opinion piece described the secret hold this way: "OF ALL THE maddening practices that clog
the arteries of the national legislature, the most infuriating may be the
Senate institution known as the 'secret hold'. . .a single senator can
stop action--
on a piece of legislation or a pending nomination -- by placing a 'hold.' No
reason needs to be given, though generally one is, often having nothing to do
with the merits of the underlying issue."

Certainly, the Constitutional Founders did not envision this
tool to gum up the works of democracy. Had the concept been a part of the
original Constitution discussion and papers, we would likely still be under
British rule. The Senate, derived from the senatus, Latin for the
"council of elders", the august body intended to be the wise
statesmen; sometimes called the "worlds greatest deliberative
body." Well, perhaps once upon a time in a land far away; but, fast
forward to 2016 where political polarization is at an all time high --
where deceit, dishonesty, inflammatory rhetoric and devious manipulation are
commonplace. Now, hand these "wise, elderly statesmen" the tool,
known as the "hold" and imagine the consequences.

Ironically, the Senate hold originally was designed to speed
up the business of the Senate. The theory was that if the Senate Majority
Leader knew in advance of a Senator's intent, they could better schdule the
business of the Senate if they were aware that a Senator(s) were going to
object to an item (e.g. legislation, appointment, etc.). Also, as a courtesy to
a Senator having a concern with an item, it would allow them additional time to
review the matter.

Ultimately, the decision to honor a Hold request, and for how
long, rests with the Majority Leader. However, Holds, like filibusters, can be
defeated through a successful cloture motion requiring 60 votes (supermajority
of 3/5). If the leadership brings up measures despite holds, everything is
delayed due to the need for cloture votes. Thus, as with the filibuster (which
has now become commonplace) a minority party can use these tactics to frustrate
and delay Senate business and circumvent the the axiom of "majority
rules" which most of us learned in kindergarten.

As is discussed in research and articles regarding the Hold
process, the general public does not tend to know or pay much attention to the
procedure, but scholars, journalists, political scientists, and elected
politicians know it well. It's interesting that you don't hear a lot of public
discussion of this incredibly disruptive mechanism that undermines the Constitution,
democracy itself and the concept of majority rule.

You hear volumes about government gridlock, delays, and
dysfunction; but, hardly a word about Senatorial Holds. You hear politicians
bemoaning the fact that government is broken and promising to fix it and work
toward bipartisan solutions. For sure, at least five of the six remaining
Presidential contenders know very well about the Senatorial Hold process and
how destructive it is to the democratic process -- four of them are or have
been Senators and one was a House member who certainly knows how things get
bottled up in the Senate. Donald Trump, not being a Washington insider, may not understand or
know the process, but would quickly learn that deals in the U.S. Senate aren't
like deals in the private sector.

So, you ask: Why doesn't someone propose fixing it? It's not
a law. It's not a rule. It's simply an informal process in the U.S. Senate that
by all rights seems to be illegal by violating Constitutional expectations. Why
isn’t the public outraged? Why don’t responsible Senators expose this practice
and propose solutions. Why doesn’t the President ever talk about it? He was a
Senator. He’s not running for office – now would be a good time.

Well the public isn’t outraged because they generally don’t
know about it. And, the responsible political leaders don’t talk about it much
because they are constrained by an unwritten political phenomenon known as
power and the idiom: “whose ox is being gored.”

Simply put – the Senatorial Hold, like the filibuster, can be
very advantageous to either party in advancing political agendas depending on
who has the majority power or control in the Senate, the House or the
Presidency. It essentially gives any one Senator, no matter what their party,
enormous power to block, stall, or frustrate any legislative matter – hardly a
Constitutionally authorized procedure.

To be fair, there have been quite a few modest, yet
complicated, attempts to put some constraints on the process. Way back in 1983,
there was actually a Senate appointed study group that recommended that the
process be abolished. [See reference #5 below]. That was when there was
actually a bit of decorum in the esteemed body.

In 2007,
President George W. Bush signed into law the Honest Leadership and Open
Government Act (S. 1). Section 512 of Title V of the law (P.L. 110-81)
specifically dealt with the issue of secret holds. While it sounds good,
Section 512 is neither a Senate rules change nor a standing order of the
Senate, and merely specifies the exact steps for making an anonymous hold
public. It is generally recognized as not being effective in ending secret
holds.

In 2010, Senator Claire McCaskill as well as Senators
Sheldon Whitehouse, Mark Warner, and other Members, joined the Senators Wyden
and Grassley in an effort to end secret holds. It basically failed and other
attempts in 2011 similarly resulted in Senators retaining largely the same
power to anonymously stall action.

Frankly, most of the proposed constraints are feeble and
really do not undermine the destructive nature of the procedure. So what began as an informal
courtesy to Senators in the late 1950s under the majority leadership of Lyndon
B. Johnson, as a way for Senators to make routine requests regarding the
Senate’s schedule, has turned into a potent extra-parliamentary practice.

Washington
gridlock and the resulting public displeasure with the broken system has its
roots in the Senatorial Hold process. The process must be radically changed or
eliminated if gridlock is going to be addressed. The result is severe, the
public is denied its right to see the policies of an elected President –
Democrat, Republican or Independent – carried out on a level playing field in
accordance with the Constitution. It’s unconstitutional in that it provides an
extreme grant of power to any individual Senator, far beyond anything
envisioned by the Founders or included in the Constitution.